Supreme Court battles show the danger of gaming the rules

WASHINGTON — Sen. John McCain, R-Ariz., and I stood alone in a Senate office hallway a year ago, moments after Senate Republicans nuked the filibuster rule for Supreme Court nominees in order to confirm Neil Gorsuch to the Supreme Court.

“The Senate has been damaged to a degree that it hasn’t been in its history,” McCain told me then. “Over in the House of Representatives, when you’re in the majority, you control everything. We are now headed in that direction. And that is not democracy.”

McCain’s concern was that future nominees to the highest court in the land would be “more radical” because a simple majority could now ram someone through who agreed with those members’ point of view. The court would thus become more partisan, and the nation would lose confidence in its integrity and in the rule of law.

Now, with the retirement of Justice Anthony Kennedy from the court, a Republican president and GOP-controlled Senate have a clear path to confirming his replacement without any Democratic votes.

Democrats are naturally upset about Kennedy’s retirement and are exploring ways to potentially delay or obstruct confirmation of Kennedy’s replacement by the Senate until after the fall elections. There is also talk of packing the Supreme Court — increasing the number of justices beyond nine to give liberals a way to claw back some leverage if Democrats win back Congress and eventually the White House.

But the history of the filibuster actually demonstrates how trying to game the rules for partisan advantage often creates outcomes that are bad for American democracy and later backfire against those who made the changes.

When Republicans eliminated the filibuster for Supreme Court nominations last year, there was much gnashing of teeth and condemnations of the so-called nuclear option. And before that, in 2013, Democrats invoked their own “nuclear” option, scrapping the Senate filibuster for the lower courts. But much of the commentary lacked reflection about the filibuster rule beyond partisan outrage. And in fact, there is a robust school of thought that says the filibuster was long overdue to be either diminished or eliminated.

As long ago as 1997, Senate experts Sarah Binder and Steven Smith wrote that the filibuster had “become an epidemic.”

Binder and Smith proposed then to allow Senate majorities to reduce the votes needed to end debate and vote — in exchange for longer periods of debate. This would allow majorities to eventually hold votes on controversial issues while giving minorities the ability to make the public case against it.

Others suggest getting rid of the filibuster entirely, including for legislation.

“When you have the partisan filibuster, to me you remove the space for shifting coalition. You force an ‘us versus them’ and consequently decrease the opportunity rather than increase the opportunity for cross-aisle negotiations,” said Henry Olsen, a senior fellow at the Ethics and Public Policy Center, a right-leaning think tank. “Right now, unless you can get 10 people from the other party, there’s no reason to talk to the other party because you just have no ability to move anything.”

Matt Bennett, a senior vice president at Third Way, a center-left think tank, said he agreed with Olsen, but only in theory.

“It’s very difficult for a Democrat to say at this moment in history they’re willing to give up the filibuster,” Bennett said. “I think this president is a catastrophe, and handing him more immense power to do terrible things would be very bad. However, in general terms my view is similar to Henry’s that the filibuster is being massively misused.

“In the abstract I am in favor of getting rid of the filibuster, [but] at this moment … I can’t say it would be a great idea because it just scares me too much, the mischief that could be done if Democrats couldn’t hold on in the one place where we have some degree of power,” Bennett said.

Bennett’s comment illustrates the challenge to meaningful reform. Changes to rules or processes are often driven more by short-term political considerations than by long-term institutional thinking.

That applies to defenders of the filibuster as well. Sen. Chris Coons, D-Del., said he was “sick to death” after joining the Democratic filibuster to block Gorsuch’s confirmation.

And Coons read a quote from former Vice President Adlai Stevenson. “The rules governing this body, the Senate, are founded deep in human experience,” Stevenson said in 1897. “They are the result of centuries of tireless effort to conserve, to render stable, and secure the rights and liberties, which have been achieved through conflict.”

But the filibuster was not a part of the constitutional design of the Senate. It came about by accident when Vice President Aaron Burr recommended that the Senate get rid of a basic preliminary rule that opened the door to a minority engaging in endless debate, which prompted the passage of a rule in 1917 to end debate.

Regardless of its origins, the filibuster has been exploited more in recent decades and as control of the Senate has flipped more frequently back and forth between Republican and Democratic control.

And the ability of one senator to block legislation and nominations is part of the attraction for all lawmakers: It gives them significant power. So, Binder and Smith wrote in 1997, “senators’ political interests, not philosophical commitments, lie at the heart of the Senate’s resistance to change” of the filibuster.

That same short-term political thinking that Bennett expressed is what created the current filibuster spats, in which elimination — not reform — of the tool is being fast-tracked.

Democrats blocked George W. Bush’s judicial appointees during his presidency, and Republicans returned the favor when Barack Obama became president, blocking his nominee, Judge Merrick Garland. Former Senate Majority Leader Harry Reid, D-Nev., retaliated to GOP obstruction by eliminating the judicial filibuster for federal judgeships, excluding the Supreme Court. And then current Senate Majority Leader Mitch McConnell, R-Ky., took the audacious step of refusing to hold a vote on Obama’s choice to replace Justice Antonin Scalia, who died in early 2016.

In return for blocking Garland, Democrats filibustered the Gorsuch nomination. In response to that, McConnell and Republicans eliminated the filibuster for Supreme Court nominations.

And it’s possible that big moments like Supreme Court nominations are when the country still needs a filibuster, or at least a temporary one similar to the idea proposed by Binder and Smith back in 1997.

It’s the same short-termism that is driving calls for stacking the court or for refusing to provide a quorum in the Senate so it cannot conduct business of any kind.

Any attempt to change the rules to block Trump’s pick to replace Kennedy would be offset by retaliation from Trump and the Republicans. The Democrats, when they’re next in the majority, could then wield the same expanded power against the GOP.

Meanwhile, the American public would grow even more despairing of its political system. They would see it — more than they already do — as guided by raw political power and cynicism rather than any guiding principles or the rule of law.

There are increasingly loud warnings from political scientists about this breakdown of faith in the democratic process. It is, they warn, what opens the door to truly authoritarian leaders, political breakdown, and terrible outcomes for the citizens of nations that abandon democracy.

As Dylan Matthews wrote in Vox, an attempt to pack the courts could enable “a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him.”

“That, roughly, is what has happened in Poland, Hungary, Honduras, Venezuela, and Turkey. It could happen here too,” Matthews wrote.

So, yes, there’s a lot at stake in the fight over Trump’s Supreme Court nominee. But it may have more to do with the health and even survival of American democracy than it does with the prospects for liberal policies.